104. Compania De Naviera Nedelka S.A. v Tradax International S.A. (The “Tres Flores”) [1972] 2 Lloyd’s Rep 384; [1973] 2 Lloyd’s Rep 247

Pest infestation in holds – vessel not entitled to give Notice of Readiness

The facts

The vessel was chartered to load a cargo of maize in bulk at Varna in Bulgaria, destination Famagusta, Cyprus.

The Synacomex form was used containing a specific provision obliging the master to ensure the suitability of the holds prior to giving notice of readiness.

The charterparty allowed the owners to give Notice of Readiness upon arrival in the roads and prior to berthing.

Notice of Readiness was tendered upon the vessel arriving in the roads on a Sunday. There it remained for a number of days prior to inspection of the holds.

Upon inspection, pests were discovered in the holds and fumigation ordered.

The charterers were prepared to treat the completion of cleaning as the commencement of laytime.

The owners insisted that the first Notice of Readiness was effective. In the alternative, the owners argued that the charterers were liable for the damages for detention due to delay on the part of the charterers in ordering an inspection.

Findings

Two London arbitrators found in favour of the owners. Their decision was reversed by Mocatta J in the Commercial Court.

Mocatta J’s decision was affirmed in the Court of Appeal (Lord Denning MR, Cairns and Roskill LJJ).

Lord Denning pointed out that both on a construction of the contract itself and in terms of the common law, the vessel was required to be ready to load prior to giving of notice. Quite obviously the vessel was not ready.

Commentary

The charterers could have taken up the position that the Notice of Readiness was invalid, both because it was given on a Sunday and because it was given when the vessel was not ready. In this event, a second notice of readiness by the owners would have been required.

Mustill QC appeared in the Court of Appeal on behalf of the owners.

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